NLRB Rules That Employee’s Use of the Facebook “Like” Feature Can Be Protected Activity

On August 22, 2014, the National Labor Relations Board (NLRB) ruled for the first time that an employee who participated in a Facebook discussion of his employer’s income tax withholding practices merely by using the “Like” feature in connection with the discussion was protected by federal law.

In Triple Play Sports Bar & Grille, the owners of a nonunionized restaurant discharged two employees – a waitress and a cook – for their participation in an off-duty, off-site Facebook discussion involving claims that several current and former employees unexpectedly owed additional state income taxes because of alleged accounting errors by their employer. A former employee of the restaurant posted a comment on her Facebook wall stating that the restaurant owners “can’t even do the tax paperwork correctly.” The cook clicked “Like” for this comment. The waitress responded to the comment with a comment of her own, stating that she too owed income taxes and referring to one of the restaurant’s owners with an off-color expletive. Neither the waitress nor the cook participated further in the discussion, although other employees and customers continued with comments, including one characterizing one of the restaurant’s owners as a “shady little man” who probably “pocketed” employees’ money.

The NLRB found the discharges unlawful. In this case, there was no dispute that the initial comment exchange among employees and a former employee about the restaurant owners not being able to “even do the tax paperwork correctly” was concerted activity relating to pay practices under the National Labor Relations Act (“NLRA”). The NLRA gives employees a general right to engage in concerted activity (that is, to act together with other employees) with respect to wages, hours, and other terms and conditions of employment and makes it unlawful for employers to base adverse employment actions on such protected concerted activities. In Triple Play, the NLRB equated merely clicking “Like” during a Facebook discussion to expressing agreement with the particular written comment to which the “Like” designation related and thus granted NLRA protection to the cook. The NLRB also found the waitress’s comment was protected, despite its use of a profane expletive to describe one of the restaurant owners. Significantly, the NLRB found that the waitress’s comment and the cook’s clicking of “Like” on one individual posting in the discussion effectively endorsed the former employee’s original complaint only, and the NLRB held that the discharged waitress and cook therefore could not be held responsible for the other comments posted in the exchange, some of which might not have been shielded by the NLRA. The NLRB further found that the employer’s Internet/Blogging policy, which prohibited employees from “engaging in inappropriate discussions about the company,” could be construed to prohibit the type of protected Facebook posts that led to the unlawful discharges and thus also violated the NLRA.

The NLRB’s decision in Triple Play is noteworthy because it expands the concept of “concerted activity” under the NLRA to include Facebook “Likes” that are inserted in a Facebook discussion of working conditions. It also continues the NLRB’s close scrutiny of and strict approach to social media policies.